The Situation
This began with a company in the construction industry working with heavy equipment and specialised machinery. In the past, there had been incidents in the workplace where workers have been injured. An inspector from the Ministry of Social Affairs and Employment had already given the company a fine in relation to safety regulations. Because of this, the company decided in 2011 to ensure that all employees within the production department must have a safety certificate. Because there are workers who struggled to get the certificate, the employer offered individual coaching processes. Despite this, one of the staff still had not gained the necessary certificate after four years, while it took on average a year to acquire it. He was the only employee within the production department without this piece of paper. For this employee, who was in the interim also ill for some time, an external reintegration had been launched.
By the Court
The employer is now asking the court to dissolve the employment relationship with the employee because of the change in circumstance. Despite the company's best efforts after four years, the diploma requirements were still not met. And the employer had lost confidence in this happening. There are no other positions within the company where the employee without this safety document could work. The employee alleges that he has been unable to get the certificate because he was frequently ill.
The Verdict
The judge found that the company has shown convincingly that it is important for all employees to have this certificate. If the health of the worker caused the failure in achieving the certificate, it can be protected against dismissal by the reflex action of the prohibition of dismissal in case of illness. But the employee has raised no medical data to suggest that. There is no expert opinion that supports the employee statement. A link between the proposed illness and the failure to obtain the certificate could not be established here. The judge still indicates that the counseling offered was perhaps too high a level of the employee.
The judge found that both parties would benefit from a continuation of the employment. However, the employee is best served continuing the initiated replacement program. Therefore, the court dissolved the employment contract for a longer period than usual: to April first 2016. The employee gets a reduced fee of six thousand euros. The court also held that the employer had done its best for the employee for many years, noting the high level of support and with the caveat of the high level of the support and that reintegration of the employee should have taken place earlier. On the other hand, the employee had remained passive throughout, taking little initiative to meet the training requirements
Source: P & O Actueel